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CAN UNDERTIME BE OFFSET BY OVERTIME?
Art. 88. Undertime not offset by overtime. Undertime work on any particular day shall not be offset by overtime work on any other day. Permission given to the employee to go on leave on some other day of the week shall not exempt the employer from paying the additional compensation required in this Chapter.
1. Prohibition Against Offsetting The obligation to pay overtime compensation is mandatory Under offsetting, the employee is made to pay twice for his undertime because his work is reduced to that extent while he was made to pay for it with work beyond the regular working hours Proper method – deduct the undertime from the accrued leave but pay the overtime to which the employee is entitled EXPLAIN EMERGENCY OVERTIME WORK Art. 89. Emergency overtime work. Any employee may be required by the employer to perform overtime work in any of the following cases: a. When the country is at war or when any other national or local emergency has been declared by the National Assembly or the Chief Executive; b. When it is necessary to prevent loss of life or property or in case of imminent danger to public safety due to an actual or impending emergency in the locality caused by serious accidents, fire, flood, typhoon, earthquake, epidemic, or other disaster or calamity; c. When there is urgent work to be performed on machines, installations, or equipment, in order to avoid serious loss or damage to the employer or some other cause of similar nature; d. When the work is necessary to prevent loss or damage to perishable goods; and e. Where the completion or continuation of the work started before the eighth hour is necessary to prevent serious obstruction or prejudice to the business or operations of the employer. Any employee required to render overtime work under this Article shall be paid the additional compensation required in this Chapter. 1. Compulsory Overtime Work General Rule – an employee cannot be compelled to render overtime work o Reason – it is violative of the constitutional injunction against involuntary servitude Exceptions: a. War or emergency situation b. Disaster or calamity c. Urgent repairs d. Preservation of perishable goods e. Completion of work f. Take advantage of favorable condition Art. 90. Computation of additional compensation. For purposes of computing overtime and other additional remuneration as required by this Chapter, the "regular wage" of an employee shall include the cash wage only, without deduction on account of facilities provided by the employer. 1. The Regular Wage Confined to cash wage ONLY, without deduction on account of facilities provided by the employer Includes all payments which the parties have agreed shall be received during the work week, including piecework wages, differential payments for working at undesirable times, such as at night or on Saturdays and holidays, and the cost of board and lodging customarily furnished the employee (NAWASA vs. NWSA Consolidated Unions) The essence is regularity and continuity of enjoyment o Therefore, cash benefits not regularly and continuously enjoyed do not form part of the regular wage, hence, they cannot be included in the computation of overtime pay, night shift differential, etc. EXPLAIN THE RIGHT TO WEEKLY REST DAY Art. 91 Right to weekly rest day. Rest Day is the period of inactivity of not less than 24 consecutive hours to an employee after rendering service for a week. Week of labor ordinary number of six labor days. Purpose of the law The purpose of granting a rest day is to promote the health, well-being and happiness of the working class. Rest day of ordinary employees: 24 consecutive hours after every six consecutive normal work days. Rest day of health personnel: Cities or municipalities: Less than 1M population or in hospital or clinics with less than 100 bed capacity: 24 consecutive hours, after every 6 consecutive normal work days. At least 1M population or in hospitals or clinics with at least 100 bed capacity: 48 hours after 5 days work.
Who determines rest day? GR: EMPLOYER EXP: preference of the employee should be respected if based on religious grounds, provided he inform the employer in writing atleast 7 days before the desired effectivity of the initial rest day so preferred. Notice of rest day: All employees simultaneously: written notice posted conspicuously in the workplace at least 1 week before it becomes effective. Not to all employees: employer should inform the employees concerned through written notices posted conspicuously in the workplace at least 1 week before it becomes effective. Art 92. When employer may require work on a rest day. GR : the employer may not require the employees to work on a restday. EXP:
- Disaster/calamity
- Urgent repairs
- Abnormal pressure of work
- Prevention of perishable goods
- Nature of work
- Favorable weather condition
- Exigencies of service WHAT IS THE COMPENSATION FOR REST DAY, SUNDAY OR HOLIDAY WORK? Art 93. Compensation of rest day, Sunday, or holiday work. Premium pay Additional compensation given to a covered employee for working on a holiday or rest day. RATES: a. On a rest day or special day Additional compensation of atleast 30% of his regular wage. b. On a special day falling on a rest day Additional compensation of atleast 50% of his regular wage. c. On a regular holiday Not exceeding 8 hours shall be paid atleast 200% of his regular daily wage. d. On a regular holiday falling on a rest day Additional compensation of atleast 30% of his regular holiday rate of 200%. GR: Sunday work considered an ordinary day, not entitled to premium pay, EXP: unless it is the established rest day. EXP to EXP: no regular work days and no regular rest day scheduled, entitled to premium pay for the Sunday work. Employees not entitles to premium pay: a. Government employees and those employed in governmentowned or controlled corporations; b. Managerial employees within the purview of Book III of the labor code; c. Officers and members of managerial staff; d. Domestic servants; e. Persons in the personal service of another; f. Workers paid by result; g. Non-agricultural field personnel; and h. Members of the family of the employer who are dependent upon him for support. *premium pay not considered in computation of 13th month pay. EXPLAIN, THE RIGHT TO HOLIDAY PAY Art 94. Right to holiday pay. Holiday pay Is a premium given to an employee during regular holidays. Purpose: to prevent diminution of the monthly income of employees on account of work interruptions. Rate: The holiday pay is 100% of the regular daily wage.
- Employee is entitled to holiday pay even if he does not work during the regular holiday.
- If the employee works, he gets 200% of his regular daily wage. List of regular holidays a. New Year’s Day- Jan 1 b. Maundy Thursday- movable date c. Good Friday- movable date d. ‘Id-ul-Fitr- movable date e. Araw ng kagitingan- April 9 f. Labor Day- May 1 g. Independence Day- June 12 h. National Heroes Day- last Sunday of august i. Bonifacio day- Nov 30 j. Christmas Day- Dec 25 k. Rizal Day- Dec 30 l. Eid’l Adha- movable date
- Muslim holidays (ART 169 of the code of muslim personal laws of the Philippines) by virtue of proclamation no. 1198 which took effect on oct 26, 197, all private corporations, offices, agencies and entities or establishments operating within muslim provinces and cities shall observe the said holidays, all employees whether muslims or non-muslims, are excused from reporting for work without reduction in their usual compensation. o Muslim employees working outside muslim provinces and cities shall also be
ART 96. Service charge:
- Applies only to business establishments collecting service charges, such as hotels, restaurants and similar enterprises, including those entities operating primarily as private subsidiaries of the government. Employees entitled to service charge:
- All employees, regardless of their position, designation, employment status, irrespective of the method by which they are paid, except managerial employees. Distribution of service charge:
- 85% for covered employees
- 15% for management
- Distribution to covered employees shall be done not less than once every two weeks or twice a month intervals not exceeding 16 days. Abolition of service charge:
- The share of the covered employees shall be considered integrated in their wages. The basis of the amount to be integrated shall be the average share of each employee for the past 12 months immediately preceding the abolition or withdrawal of such charges. Chapter 2 MINIMUM WAGE RATES ARTICLE 99. Regional minimum wages. – The minimum wage rates for agricultural and non-agricultural employees and workers in each and every region of the country shall be those prescribed by the Regional Tripartite Wages and Productivity Boards. (As amended by Section 3, Republic Act No. 6727, June 9, 1989).
- Purpose of the law: assure decent living conditions of the worker • Basis of minimum wage: not exceeding 8 hrs/day
- Methods employed in fixing the minimum wage:
- Floor-wage method
- Prescribes a determinate amount that would be added to the prevailing statutory minimum wage
- Salary-ceiling method
- Prescribes a wage adjustment that would apply only to employees receiving a certain denominated salary ceiling
- Minimum wage varies from region to region
- Factors to be considered in fixing the minimum wage:
- Demand for living wages
- Wage adjustment vis-à-vis consumer price index
- Cost of living and changes or increase therein
- The needs of workers and their families
- The need to induce industries to invest on the countryside
- Improvements in the standards of living
- The prevailing wage levels
- Faire return of capital invested and capacity to pay the workers
- Effects on employment generation and family income; and
- The equitable distribution of income and wealth along the imperatives of economic and social development
- Prohibitions on minimum wage fixed by law:
- It cannot be waived (mandatory)
- Not bargainable
- Sanctions for failure or refusal to comply to pay the prescribed wage increase:
- Criminal liability – 25k - 100k; 2-4 yrs
- Double indemnity – double the unpaid benefits owing to employee
- Agriculture – farming activities in conjunction with farming operations. It includes: 1. The cultivation or tillage of soil
- Dairying
- The production, cultivation, growing and harvesting of agricultural and horticultural commodities; and 4. The raising of livestock or poultry
- The minimum wage rate of agricultural workers is different from that of non-agricultural
- Agricultural employee – a person who is employed in an undertaking principally engaged in the foregoing activities WHAT IS DIMINUTION OF BENEFITS? ARTICLE 100. Prohibition against elimination or diminution of benefits. – Nothing in this Book shall be construed to eliminate or in any way diminish supplements, or other employee benefits being enjoyed at the time of promulgation of this Code.
- When non-diminution of benefits is not violated:
- The action does not reduction or elimination of benefits
- If it deducts the fair and reasonable value of facilities
- Where an employer reduces the bonuses it used to grant its employees
- The grant of benefits for a long period of time may ripen into a company practice and create a
vested right upon the employees. To be considered as such, it should have been observed a long period of time, and must be shown to have been consistent and deliberate.
- This means that an employer may not unilaterally take back or reduce benefits that it has voluntarily given to its employees. ARTICLE 101. Payment by results****. - (a) The Secretary of Labor and Employment shall regulate the payment of wages by results, including pakyao, piecework, and other non-time work, in order to ensure the payment of fair and reasonable wage rates, preferably through time and motion studies or in consultation with representatives of workers and employers organizations.
- Categories of workers paid by results:
- Those whose time and performance are supervised by the employer: control is over the manner as to how the work is to be performed
- Those whose time and performance are unsupervised by the employer: control is over the result of the work
- Piece workers – connote a laborer or worker with no fixed salary, wages or remuneration but receiving as compensation from his employer depending upon the work done or the result of the said work irrespective of the amount of time employed
- The compensation of workers paid by results should not be less than the statutory minimum wage for an 8-hr work or a proportion thereof for less than 8 hrs work
- In the absence of such prescribed wage rates for piece-rate workers, the ordinary minimum wage rates prescribed by the RTWPB shall apply. Chapter 3 PAYMENT OF WAGES CAN AN EMPLOYER PAY WAGES THROUGH GIFT CHEQUE? ARTICLE 102. Forms of payment****. – No employer shall pay the wages of an employee by means of promissory notes, vouchers, coupons, tokens, tickets, chits, or any object other than legal tender, even when expressly requested by the employee. Payment of wages by check or money order shall be allowed when such manner of payment is customary on the date of effectivity of this Code, or is necessary because of special circumstances as specified in appropriate regulations to be issued by the Secretary of Labor and Employment or as stipulated in a collective bargaining agreement. Legal Tender – that currency which has been made suitable by law for the purpose of tender of payment of debts.
- All notes and coins issued by the Bangko Sentral ng Pilipinas are legal tender
- A check, whether a manager’s or ordinary, is not a legal tender
- Payment of wages in legal tender, mandatory
- Purpose: to prevent the employee from being shortchanged and to ensure that the compensation given could be used by the employee for any purpose that he wants
- If an employer pays the wages in a medium other than legal tender, it will not produce the effect of payment.
- Effect: it will not discharge the employer from liability for unpaid wages
- When payment of wages by check or money order:
- When such manner of payment is customary on the date of the effectivity of the LC
- When so stipulated in a CBA
- When there is a bank or other facility for encashment within the radius of 1 km from the workplace, provided: a. that the employer or any of his agent does not receive any pecuniary benefit directly or indirectly from the arrangement, b. that the employees are given reasonable time during banking hours to withdraw their wages from the bank during company time, c. that the employee consents to such an agreement, in the absence of a collective agreement on the matter ARTICLE 103. Time of payment****. – Wages shall be paid at least once every two (2) weeks or twice a month at intervals not exceeding sixteen (16) days. If on account of force majeure or circumstances beyond the employers control, payment of wages on or within the time herein provided cannot be made, the employer shall pay the wages immediately after such force majeure or circumstances have ceased. No employer shall make payment with less frequency than once a month. The payment of wages of employees engaged to perform a task which cannot be completed in two (2) weeks shall be subject to the following conditions, in the absence of a collective bargaining agreement or arbitration award:
Title 3 WORKING CONDITIONS FOR SPECIAL GROUPS OF WOMEN EXPLAIN MATERNITY LEAVE BENEFITS ARTICLE 133. Maternity Leave Benefits — -has been superseded with the integration of maternity leave with the Social Security Law, Sec. 14-A: -female workers must have paid at least 3 monthly contributions in the 12-month period immediately preceding the childbirth, abortion, miscarriage -shall be paid daily maternity benefit equivalent to her average daily salary (a) 60days- normal delivery (b) 78days- cesarean delivery -conditions: (a) Employee has notified her employer of her pregnancy ad the probable date of birth (b) Full payment shall be advanced by the employer 30days from filing of the application (c) Payment of benefits bars the recovery of sickness benefits within the period of leave (d) Applicable only for the first four deliveries or miscarriages (e) SSS shall immediately reimburse the employer 100% (f) Employer will pay to the SSS damages equivalent to the benefits which the female employee is entitled, in cases where: o 1) he failed to remit the SSS contributions required o 2) he failed to notify SSS of such pregnancy EXPLAIN HOW PATERNITY LEAVE WORKS Paternity Leave (R.A No. 8187) Leave for 7 days -Who are entitled? Married male employees for the first 4 deliveries of the legitimate spouse with whom he is cohabiting -conditions: (a) male employee should be employed at the time of the delivery of his child (b) employee should notify his employer about the pregnancy of his wife and the expected date of delivery (c) wife has given birth, suffers a miscarriage or an abortion
- paternity leave is not convertible to cash
- leave can be availed of before, during or after the delivery by his wife, but not later than 60 days the delivery EXPANDED MATERNITY LEAVE ACT AND EXPANDED PATERNITY LEAVE ACT Republic Act (RA) No. 11210 or the Expanded Maternity Leave Act not only gives mothers up to 105 days or 3 months of maternal leave, it also entitles fathers to 14 days of paid leave
LEAVE FOR SOLO PARENTS?
Parental Leave for Solo Parents (R.A No. 8972- Solo Parents’ Act of 2000) -Who are solo parents : (a) a woman who gives birth as a result of rape or crimes against chastity, WON the offender is convicted (b) a parent left solo with the responsibility of parenthood due to: i. death of the spouse ii. detention of the spouse for at least a year iii. physical of mental incapacity of spouse iv. legal separation of spouse of de facto separation as long as he/she is entitled to the custody of the children v. declaration of nullity of marriage, above condition applies vi. abandonment of the spouse for at least one year (c) unmarried mother/father (d) any other person, provided that he/she is a licensed foster parent by the DSWD or appointed as guardian by the court (e) any family member who assumes as the head of the family because of death, absence, disappearance of abandonment of parents, provided that such lasts for at least a year -entitled to a non-cumulative parental leave of 7 working days -purpose: enable the solo parent to perform parental duties -conditions: (a) employee must have rendered at least one year of service (b) must notify the employer within a reasonable time (c) must present his Solo Parent ID to the employer Book 5 LABOR RELATIONS “Labor Standards” refers to the minimum terms and conditions of employment which employees are legally entitled to and employers must comply with. “Labor Relations” refers to the interactions between employer and employees or their representatives and the mechanism by which the standards and other terms and conditions of employment are negotiated, adjusted and enforced. EXPLAIN EMPLOYEE'S RIGHT TO SELF ORGANIZATION Art. 253. Coverage and Employees' Right to Self- organization. - All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not, shall have the right to self- organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self-employed people, rural workers and those
without any definite employers may form labor organizations for their mutual aid and protection. All persons employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical, or educational institutions, whether operating for profit or not, shall have the right to self-organization and to form, join, or assist labor organizations of their own choosing for purposes of collective bargaining. Ambulant, intermittent and itinerant workers, self- employed people, rural workers and those without any definite employers may form labor organizations for their mutual aid and protection. Right to self-organization - It is the right of workers and employees to form, join or assist unions, organizations or associations for purposes of collective bargaining and negotiation and for mutual aid and protection. It also refers to the right to engage in peaceful concerted activities or to participate in policy and decision-making processes affecting their rights and benefits.
- Is a constitutional right Workers’ Association - A workers’ association means any group of workers, including ambulant, intermittent, self-employed, rural workers and those without definite employers, organized for mutual aid and protection of its members or for any legitimate purpose other than collective bargaining. Workers’ Organization A labor or trade union is a combination of workmen organized for the ultimate purpose of securing through united action the most favourable conditions as regards wages, hours of labor, conditions of employment, etc., for its members. In the popular sense a labor union is understood to be a completely organized body of dues-paying members, operating through elected officers and constituting a militant, vital and functioning organ. It may be said that while every labor union is a labororganization, not every labor organization is a labor union. The difference is one of organization, composition and operation. The following may join a labor organization: a) all employees employed in commercial, industrial and agricultural enterprises and in religious, charitable, medical or educational institutions whether operating for profit or not; b) government employees in the civil service; c) supervisory personnel; d) security personnel; and, e) aliens with valid working permit provided there are nationals of a country which grants the same or similar rights to Filipino workers as certified by the Department of Foreign Affairs (DFA). Why Workers Organize Self-help through economic action necessarily requires increasing the bargaining power of employees; hence one of the basic purposes of a labor union is to eliminate competition among employees in the labor market. Three other human desires should be noted among the forces that led workers to organize: (1) One is the desire for job security. (2) Employees wished to substitute what we should term “the rule of law” for the arbitrary and often capricious exercise of power by the boss. (3) Finally, unions helped to give employees a sense of participation in the business enterprises of which they are part—a function of labor unions which became important as organizations spread into mass production industries. The union is the recognized instrumentality and mouthpiece of the laborers. CAN THE FOLLOWING ENJOY SELF ORGANIZATION? Government employees ART. 254. Right of Employees in the Public Service. Employees of government corporations established under the Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All other employees in the civil service shall have the right to form associations for purposes not contrary to law. Managerial Employees and Supervisory Employees ART. 255. Ineligibility of Managerial Employees to Join any Labor Organization; Right of Supervisory Employees. Managerial employees are not eligible to join, assist or form any labor organization. Supervisory employees shall not be eligible for membership in the collective bargaining unit of the rank-and-file employees but may join, assist or form separate collective bargaining units and/or legitimate labor organizations of their own. The rank and file union and the supervisors' union operating within the same establishment may join the same federation or national union. Rationale: The right to self-organization, however, is subject to certain limitations as provided by law. For instance, the Labor Code specifically disallows managerial employees from joining, assisting or forming any labor union. Meanwhile, supervisory employees, while eligible for membership in labor organizations, are proscribed from joining the collective bargaining unit of the rank and file employees.54 Even government employees have the right to self-organization. It is not,
encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall stop the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except those employees who are already members of another union at the time of the signing of the collective bargaining agreement. Employees of an appropriate bargaining unit who are not members of the recognized collective bargaining agent may be assessed a reasonable fee equivalent to the dues and other fees paid by members of the recognized collective bargaining agent, if such non-union members accept the benefits under the collective bargaining agreement: Provided, That the individual authorization required under Article 242, paragraph (o) of this Code204 shall not apply to the non-members of the recognized collective bargaining agent; (f) To dismiss, discharge or otherwise prejudice or discriminate against an employee for having given or being about to give testimony under this Code; (g) To violate the duty to bargain collectively as prescribed by this Code; (h) To pay negotiation or attorney’s fee to the union or its officers or agents as part of the settlement of any issue in collective bargaining or any other dispute; or (i) To violate a collective bargaining agreement. The provisions of the preceding paragraph notwithstanding, only the officers and agents of corporations, associations or partnerships who have actually participated in, authorized or ratified unfair labor practices shall be held criminally liable. WHAT IS THE DUTY TO BARGAIN COLLECTIVELY? ART. 263. Meaning of Duty to Bargain Collectively. The duty to bargain collectively means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession. The duty to bargain collectively - means the performance of a mutual obligation to meet and convene promptly and expeditiously in good faith for the purpose of negotiating an agreement with respect to wages, hours of work and all other terms and conditions of employment including proposals for adjusting any grievances or questions arising under such agreement and executing a contract incorporating such agreements if requested by either party but such duty does not compel any party to agree to a proposal or to make any concession. Duty to bargain collectively when there is no CBA In the absence of an agreement or other voluntary arrangement providing for a more expeditious manner of collective bargaining, it shall be the duty of employer and the representatives of the employees to bargain collectively in accordance with the provisions of this Code Duty to Bargain collectively when there is a CBA When there is a collective bargaining agreement the duty to bargain collectively shall also mean that neither party shall terminate nor modify such agreement during its lifetime. However, either party can serve a written notice to terminate or modify the agreement at least sixty (60) days prior to its expiration date. It shall be the duty of both parties to keep the status quo and to continue in full force and effect the terms and conditions of the existing agreement during the 60-day period and/or until a new agreement is reached by the parties. Title VIII STRIKES AND LOCKOUTS AND FOREIGN INVOLVEMENT IN TRADE UNION ACTIVITIES ART. 278. Strikes, Picketing, and Lockouts. (a) It is the policy of the State to encourage free trade unionism and free collective bargaining. (b) Workers shall have the right to engage in concerted activities for purposes of collective bargaining or for their mutual benefit and protection. The right of legitimate labor organizations to strike and picket and of employers to lockout, consistent with the national interest, shall continue to be recognized and respected. However, no labor union may strike and no employer may declare a lockout on grounds involving inter-union and intra-union disputes. (c) In cases of bargaining deadlocks, the duly certified or recognized bargaining agent may file a notice of strike or the employer may file a notice of lockout with the Ministry at least 30 days before the intended date thereof. In cases of unfair labor practice, the period of notice shall be 15 days and in the absence of a duly certified or recognized bargaining agent, the notice of strike may be filed by any legitimate labor organization in behalf of its members. However, in case of dismissal from employment of union officers duly elected in accordance with the union constitution and by-laws, which may constitute union busting where the existence
of the union is threatened, the 15-day cooling-off period shall not apply and the union may take action immediately. (d) The notice must be in accordance with such implementing rules and regulations as the Minister of Labor and Employment may promulgate. (e) During the cooling-off period, it shall be the duty of the Ministry to exert all efforts at mediation and conciliation to effect a voluntary settlement. Should the dispute remain unsettled until the lapse of the requisite number of days from the mandatory filing of the notice, the labor union may strike or the employer may declare a lockout. (f) A decision to declare a strike must be approved by a majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in meetings or referenda called for that purpose. A decision to declare a lockout must be approved by a majority of the board of directors of the corporation or association or of the partners in a partnership, obtained by secret ballot in a meeting called for that purpose. The decision shall be valid for the duration of the dispute based on substantially the same grounds considered when the strike or lockout vote was taken. The Ministry may, at its own initiative or upon the request of any affected party, supervise the conduct of the secret balloting. In every case, the union or the employer shall furnish the Ministry the results of the voting at least seven days before the intended strike or lockout, subject to the cooling-off period herein provided. (g) When, in his opinion, there exists a labor dispute causing or likely to cause a strike or lockout in an industry indispensable to the national interest, the Secretary of Labor and Employment may assume jurisdiction over the dispute and decide it or certify the same to the Commission for compulsory arbitration. Such assumption or certification shall have the effect of automatically enjoining the intended or impending strike or lockout as specified in the assumption or certification order. If one has already taken place at the time of assumption or certification, all striking or locked out employees shall immediately return to work and the employer shall immediately resume operations and readmit all workers under the same terms and conditions prevailing before the strike or lockout. The Secretary of Labor and Employment or the Commission may seek the assistance of law enforcement agencies to ensure compliance with this provision as well as with such orders as he may issue to enforce the same. In line with the national concern for and the highest respect accorded to the right of patients to life and health, strikes and lockouts in hospitals, clinics and similar medical institutions shall, to every extent possible, be avoided, and all serious efforts, not only by labor and management but government as well, be exhausted to substantially minimize, if not prevent, their adverse effects on such life and health, through the exercise, however legitimate, by labor of its right to strike and by management to lockout. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, therefore, the Secretary of Labor and Employment may immediately assume, within twenty four (24) hours from knowledge of the occurrence of such a strike or lockout, jurisdiction over the same or certify it to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them. The foregoing notwithstanding, the President of the Philippines shall not be precluded from determining the industries that, in his opinion, are indispensable to the national interest, and from intervening at any time and assuming jurisdiction over any such labor dispute in order to settle or terminate the same. (h) Before or at any stage of the compulsory arbitration process, the parties may opt to submit their dispute to voluntary arbitration. (i) The Secretary of Labor and Employment, the Commission or the voluntary arbitrator or panel of voluntary arbitrators shall decide or resolve the dispute within thirty (30) calendar days from the date of the assumption of jurisdiction or the certification or submission of the dispute, as the case may be. The decision of the President, the Secretary of Labor and Employment, the Commission or the voluntary arbitrator
be a clear agreement on the completion or terminated of the project at the time of employment. Predetermining the duration of project employment is important in determining if employee is a project employee or not. They may acquire the status of a regular employee when they are continuously rehired after the completion of a project or undertaking. Else, they will automatically be terminated.
3. Seasonal Employment Employees on seasonal employment in Philippines will only work for the duration of the season. Some work is seasonal in nature and is only performed during a specific time of the year. One example is during Christmas where a group of workers will usually be engaged for the duration of the promotional event. They are mostly part-time or temporary workers that help with increased work demands for that period. These workers will be temporarily laid off during off season but re- employed when their services are needed. The employee relationship is never severed but only suspended. 4. Casual Employment Casual employment in Philippines is defined where an employee is engaged to perform a job insignificant to the core business of the employer. The work must be a definite period made known to both parties at the time of engagement. A casual employee is one whose work is neither regular, project or seasonal. Once they have worked for at least a year, whether continuously or not, they transition into a regular employee with respect to the employed position. A casual employee is entitled to all rights and privileges granted by law to regular employees during the period of actual employment. Similarly, all duties and obligations must be abided by between both parties. 5. Fixed Term Employment Fixed term employees in Philippines are also known as contractual employees where they are engaged to perform a job, work or service for a pre-determined date of completion, or where the employment has a specific date of termination. The term of contract will be mutually agreed by both parties and employees will be automatically terminated once the contract ends. During this term, fixed term employees cannot be terminated without due processes and cause under the Labour Code of Philippines. 6. Probationary Employment Probationary employees in Philippines are those made to go on a stipulated trial period before transiting to a regular employee. They enjoy security of tenure during this period and may not be dismissed except for just or authorised case or when they fail to qualify as regular employees. During this crucial period, employees on probation are scrutinised and assessed on their ability to perform on the job. This not only allows the employer to judge if new hires can carry out the job well, it also allows employees to understand their own suitability to the job. Good performing candidates will be allowed to successfully transit into a regular employee while non- performers will normally be asked to leave. This probationary period typically lasts not more than 6 months. Similarly, being deemed as a regular employee means they cannot be terminated without cause and due process and it protected under the Labour Code of Philippines. WHAT ARE THE JUST AND AUTHORIZED CAUSES FOR THE TERMINATION OF AN EMPLOYEE? ART. 297.Termination by Employer. An employer may terminate an employment for any of the following causes: (a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (b) Gross and habitual neglect by the employee of his duties; (c) Fraud or willful breach by the employee of the trust reposed in him by hisemployer or duly authorized representative; (d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and (e) Other causes analogous to the foregoing. A dismissal based on just cause means that the employee has committed a wrongful act or omission; while a dismissal based on authorized cause means that there exists a ground which the law itself authorizes to be invoked to justify the termination of an employee even if he has not committed any wrongful act or omission. The following must be observed, so that the employer will not be held for illegal dismissal: a) A written notice served on the employee specifying the grounds for termination, and giving said employee reasonable opportunity or five (5) days within which to explain his side;
b) A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him; and c) A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. Dismissal of employees requires the observance of the two-fold due process requisites, namely: (1) Substantive aspect which means that the dismissal must be any of the just causes provided under Article 297 of the Labor Code or the company rules and regulations promulgated by the employer or authorized causes under Article 298 of the Labor Code, and (2) Procedural aspect which means that the employee must be accorded due process, the elements of which are notice and the opportunity to be heard and to defend himself ART. 298. Closure of Establishment and Reduction of Personnel. The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year. ART. 299. Disease as Ground for Termination. An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided, That he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year. Under the Labor Code, authorized causes are classified into two (2) classes, namely: (1) Business- related causes and (2) Health-related causes. Business-related causes which are recognized under the said Code are as follows: Art. 298-
1. Installation of Labor-Saving Device The installation of these devices is a management prerogative and the courts will not interfere with its exercise in the absence of abuse of discretion, arbitrariness, or malice on the part of management. Installation of labor-saving device will result in making positions being held by employees who will be adversely affected thereby redundant and unnecessary. 2. Redundancy Redundancy exists when the services of an employee are in excess of what is reasonably demanded by the actual requirements of an enterprise. This happens when the position is superfluous because of a number of factors such as over-hiring of workers, decreased volume of business, dropping of a particular product line or service activity previously manufactured or undertaken by the enterprise or phasing out of service activity priorly undertaken by the business. 3. Retrenchment Retrenchment has been defined as “the termination of employment initiated by the employer through no fault of the employees and without prejudice to the latter, resorted to by management during periods of business recession, industrial depression, or seasonal fluctuations; or during lulls occasioned by lack of work or orders, shortage of materials; or considerable reduction in the volume of employer’s business, conversion of the plant for a new production program or the introduction of new methods or more efficient machinery, or of automation. Proof of losses or possible imminent losses is the distinctive requisite of retrenchment. 4. Closure or Cessation of Business Operations Closure or cessation of business is the complete or partial cessation of the operations or shutdown of the establishment of the employer. It is carried out to stave off the financial ruin or promote the business interest of the employer. 5. Disease
form of reward for his loyalty and service to the employer. Retirement benefits, where not mandated by law, may be granted by agreement of the employees and their employer or as a voluntary act on the part of the employer. GR: benefit applies to all employees EXP:
- Government employees;
- Employees of retail, service, and agricultural establishments/operations regularly employing not more than ten (10) employees. Conditions for Entitlement
- There is no retirement plan or agreement providing for retirement benefits of employees in the establishment
- The covered employee should reach retirement age- i.e., for optional retirement. he/she should be at least sixty (60) years old (early retirement policy consent: explicit; voluntary; free; uncompelled), whereas for mandatory retirement, he/she should be at least sixty-five (65) years old:
- The covered employee should have rendered at least five (5) years of service in the establishment. However, the employer and the employee may stipulate a lower length of service, such as three (3) years of service. Such a stipulation is in favor of an employee as he/she will just render fewer years of service to be entitled to retirement benefits. Accordingly, such a stipulation may be considered valid. Benefit The minimum retirement pay shall be equivalent to one- half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one (1) whole year. For the purpose of computing retirement pay, “one-half month salary” shall include all of the following:
- Fifteen (15) days salary based on the latest salary rate;
- Cash equivalent of five (5) days of service incentive leave;
- One-twelfth (1/12) of the thirteenth-month pay. (1/12 x 365/12 = .083 x 30.41 = 2.5) Thus, “one-half month salary” is equivalent to 22.5 days. The COLA shall not be included in the computation of retirement pay. Formula: Minimum Retirement Pay = Daily Rate x 22. days x number of years in service In an absence of a retirement plan, you can refer to RA 7641, An Act that Provides Retirement Pay to Qualified Private Employees in the Absence of any Retirement Plan.
